Demelus sued King Motor for damages he sustained in the automobile accident involving the vehicle stolen from King Motor. Demelus filed an affidavit by a purported security expert, who made conclusory statements of law that King Motor’s security practices were negligent, that King Motor’s negligence caused Demelus’s injury, and that Demelus’s injury was preventable if King Motor had done more to prevent the theft.1 King Motor moved for summary judgment and claimed that the theft of the vehicle was unforeseeable. The trial court granted summary judgment for King Motor. We affirm.

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“Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.”...Duty, however, is not limitless. To impose a duty, it is not enough that a risk merely exists or that a particular risk is foreseeable; rather, the defendant’s conduct must create or control the risk before liability may be imposed.

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At the most basic level, Stevens involved allegedly negligent security practices regarding ultra-hazardous materials, while this appeal involves allegedly negligent security practices regarding the operation of an auto dealership. We consider it much more likely that negligent security practices involving ultra-hazardous materials create a risk than negligent security practices of a n automobile dealership. Allegedly negligent security practices involving anthrax create a risk because anthrax, when inhaled, is deadly. The government knew of this risk in Stevens, and therefore, it was foreseeable that harm would result from negligent security in guarding the anthrax samples. Unlike anthrax samples, automobiles are ubiquitous in our society. A locked, parked vehicle with the engine off is not a dangerous instrumentality. The risk of harm involving an automobile exists only when the automobile is turned on and driven. See Aurbach, 753 So. 2d at 62 (stating that a vehicle in operation is a dangerous instrumentality). Thus, King Motor’s conduct did nothing to create a risk of harm, such as making the keys to the vehicles readily available, like in Vining and Hewitt. Instead, King Motor sought to prevent its cars from being used. The operation of an automobile dealership in which the vehicles are locked and kept behind a locked, chained gate, with the keys to the vehicles kept in a locked building, does not create a risk of harm as a matter of law.

To the extent that King Motor’s security practices were deficient, the deficiency does not constitute an affirmative act. In Stevens, the court did not reject the plaintiff’s argument that the government’s failure to adopt reasonable security measures was an affirmative act, and not a mere failure to act. Id. at 1069 & n.4. In allowing the plaintiff to characterize the government’s behavior this way, it can be said that the government’s affirmative act of failing to adopt reasonable security measures created a foreseeable risk of bioterrorism. Seeid. at 1068 (“[A]cts of commission . . . historically generate a broader umbrella of tort liability than acts of omission”). When ultra-hazardous materials are involved, this characterization is understandable. However, to the extent that King Motor’s security practices were deficient, its security practices are better understood as an omission, or a failure to act, rather than as an affirmative act, or commission. See id. at 1069 n.4 (“[B]y ‘misfeasance’ the defendant has created a new risk of harm to the plaintiff, while by ‘nonfeasance’ he has at least made his situation no worse . . . .”) (quoting Prosser and Keeton on the Law of Torts § 56, at 373-75 (W. Page Keeton et al. eds., 5th ed. 1984)). Because the risk of being injured in an automobile accident already existed when Demelus chose to travel on the public roads, the fact that King Motor kept its cars secured on its premises makes Demelus’s risk of injury no worse. Because King Motor kept its vehicles secured, it did not create a risk of third-party criminal conduct. For King Motor to have created a risk of third-party criminal conduct, it would have had to, for example, affirmatively make its vehicles available to the thieves. Cf. Vining, 354 So. 2d 54; Hewitt, 912 So. 2d 682. Moreover, the mere assertion by Demelus’s expert that King Motor could have enacted more stringent security measures, regardless of their economic feasibility or practices of similar auto dealerships, does not create a material issue of fact to preclude summary judgment.

It is prudent to note that this particular form of theft was unforeseeable to King Motor, given its prior history of vehicle theft. Questions of foreseeability are fact-dependent. Because King Motor had not experienced similar thefts in the past, the vehicle theft at issue in this appeal was unforeseeable as a matter of law. Furthermore, King Motor’s conduct did not create a risk. Although the supreme court has characterized the imposition of a duty as a mere threshold, we hold that the facts of this case do not cross this threshold. Therefore, we agree with the trial court’s grant of summary judgment for King Motor.

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